Background checks

It seems there's a bit of an issue with firearm purchases in Delaware.  When an 81-year-old woman tried to buy a gun, the police delayed her purchase for 10 days to investigate it first, and required an interview with her and the dealer before allowing the transaction to proceed.  As part of their investigation, they searched 7 years of firearms purchase records to see if she had ever purchased a firearm before.

There are lots of problems here:

• The checks are supposed to only look for legally disabling criteria -- never age or sex.
• If there is reason to delay a check, it's only supposed to be delayed for 3 days; after that the transaction is supposed to go through.
• So far as I know, there's no provision for a law enforcement interview as part of the investigation; it's supposed to be just a background check.
• The records of the check are supposed to be deleted after 60 days (local Delaware rules, apparantly; federal checks are supposed to be deleted after 24 hours).
• The records of past checks aren't supposed to exist and therefore should never be used (even if they do exist through some accident).

As a software developer I know how important keeping logs can be to diagnose problems with the software.  But for a sensitive application like this one, those logs need to be carefully protected while they exist and destroyed in accordance with the law.  That someone was able to not only know that those logs exist, but casually check them to verify a purchaser's history of firearms transactions, is evidence of a dramatic failure in security.

This is the fundamental problem with background checks: the police cannot be trusted not to impose their own views of "who should have a gun" into the process, in open defiance of the laws, because there is no punishment for violating them.  What is supposed to be a simple measure to prevent criminals from buying firearms has been implemented as a requirement to ask police permission for each purchase -- permission that can be arbitrarily delayed or denied with no consequences to the police for doing so.

Shouldn't this case draw a lawsuit for deprivation of civil rights under color of law?

... who calls his blog GunShowOnTheNet.  But his latest entry reveals that he is in dire need of some education.  Witness:

It is evident that the Federal Government has not only the Right but the duty to perform 'Background' checks on prospective purchasers of Firearms. It is quite apparent that our Founders desired that Firearms be in "safe and sane" hands. That the Federal Government assures that a citizen is indeed capable of possessing a firearm is a matter of Ensuring Domestic Tranquility.

No such thing is "evident".  First, the federal government does not have rights; it has powers, granted to it by the Constitution.  Second, "ensuring domestic tranquility", despite the appearance of those words within that document, is not a grant of power.  It's a statement of purpose, similar to "promote the general welfare", to which those specifically granted powers should be applied.  (Unless you want to contend that drugging the water supply with valium is Constitutionally-permissible).

The present prohibition on felons possessing firearms is doubly offensive to the Constitution; it is an infringement of the right to keep and bear arms, and it lacks any Constitutionally-enumerated power from which its authority is derived.  While removing or overturning it is both unlikely and probably unwise, only the naive proponents of gun control imagine (usually only for brief moments of supreme concentration, accompanied by a supportive chorus) that it actually prevents criminals from getting their hands on a gun if they want one.

A Constitutional government would lock its criminals up without their guns, preferably for long enough to ensure that they would trod the straight and narrow in the future, and restore them their arms upon release.  Those criminals who repeatedly committed violent crimes would find Darwin close upon their heels before long. 

While it may be politically expedient to publically voice support for background checks, it is neither effective in reducing crime nor is it sound in principle.  Even if prohibitting felons from firearms possession is considered a wise and successful policy, background checks on ordinary citizens represent a prior restraint upon a protected right.  We must always remember that it represents a compromise, not a victory.

But those goals are being undermined because the nation's chief law enforcement agency, the Justice Department (news - web sites), is using a loophole in federal law to let terror suspects purchase guns. Until recently, department critics contend, the loophole also denied FBI (news - web sites) terrorism investigators access to information that might help them track suspects.

Remember, folks, it's easy to get on a "suspected terrorist" watchlist. You don't have to be convicted of anything. Even just being an environmental activist and donating to the wrong group, one a little too radical, can do it. Or getting quoted in a newspaper in a moment of save-the-animals passion. The background check system looks for felony convictions precisely because the requirements for a felony conviction include evidence and a fair trial -- unlike a "terrorist watch list".

A provision addressing firearm background checks does not belong in a federal appropriations bill, any more than $275,000 to refurbish the Coach George E. Ford Center in Powder Springs, Ga., does.

But the cries from some quarters that gun control laws will be gutted if the FBI is allowed to discard certain background check information after 24 hours are nothing but hyperbolic fear-mongering.

The provision that has gun control advocates gnashing their teeth would require destroying federal gun purchase records within 24 hours, not the current 90 days, if law enforcement officials found no instant warning signals of a criminal past or mental illness.

Last I checked, the law said no records would be kept, at all. The FBI interpreted that as "we'll keep records for 90 days to make sure the system is working", but they did so in specific contravention of the law. Suppose the law does get passed with this provision... what are the odds the FBI would not find another excuse?

As long as the records are ultimately destroyed, the federal government ought to keep documents on gun buyers for a reasonable length of time to weed out fraud. And a reasonable amount of time means a few months, not one day.

The problem with this is that "ultimately destroyed" could mean 20 years from now, or whenever the police recover the associated weapon and destroy it, or any number of other things. The government does not need a list of law-abiding gun owners, and there is no conceivable use for keeping it.

At one point, the government kept the records of all checks for 180 days, but President Clinton halved that requirement. Now, after three months, the records are destroyed unless there's reason to believe there's evidence of a crime. This gives the FBI and other agencies time to determine whether the instant-check system is being abused by fraud, perhaps by buyers or even dealers using a false identity.

How many people have been convicted using these records? How many even prosecuted?

The National Rifle Assn. has steadily opposed the Brady law, which requires a background check of potential gun buyers. Now, with a friendly majority in Congress, the pro-gun lobby is close to significantly weakening this vital crime control tool. The House passed legislation before its holiday recess that would require the FBI to destroy gun buyer records within 24 hours of the sale of a weapon, wiping out a database that police use to solve gun crimes and rescind some gun sales. The Senate will take up the NRA-drafted proposal this month, and senators who regularly declare themselves to be tough on crime will have no choice but to oppose it.

The Brady Handgun Violence Protection Act, approved in 1993, requires that would-be handgun buyers pass a national computer background check before they can walk out of the store with their new weapons. Prospective purchasers are barred if they've been convicted of a felony or domestic violence, are "mentally defective" or are the subject of a restraining order or arrest warrant.

The law has worked well so far. Ninety-one percent of the time, the person gets an instant green light to buy the gun; last year, the checks disqualified 136,000 dangerous or unstable people. That part of the law would remain untouched. However, federal law requires the Justice Department to keep those electronic records for 90 days. FBI agents combing through this data sometimes discover that incomplete or incorrect information let someone who can't legally buy a handgun get one anyway. That's how the FBI retrieved more than 18,000 firearms since 1994 from ineligible buyers, according to federal studies. Law enforcement agencies also use this database to trace recently purchased weapons used in crimes.

It doesn't surprise me that the LA Times opposed any pro-gun measure. What surprises me is the ignorance revealed by this particular complaint. The particular law in question only applies to legal gun sales! What does that mean in this case? It means that if the application comes back DENY than the record can be kept. I'm not sure how delays would be handled, but presumably while the status is "delay" they can be kept, and when a final determination is made that can be acted on appropriately.

Does the anti-gun lobby really think that criminals get their guns by filling in legal and correct information on their background check forms?

A House Democrat introduced legislation on Wednesday to ban terror suspects on the "No Fly List" from buying weapons, a day after a government report showed that at least 47 had been able to legally purchase firearms.

New York Democrat Rep. Carolyn McCarthy introduced legislation barring anyone included on the Transportation Security Administration's (TSA) No Fly List from purchasing firearms.

This is the problem with allowing the camel's nose into the gun store: once the politicians can define who is legally allowed to purchase a gun they feel free to redefine that to suit the cause of the day.  Whatever you think about guns, though, this particular bill is a bad idea: it denies anyone on the watch list, including American citizens, the ability to buy a firearm from a licensed dealer.  It does this despite the fact that people on the watch list have not necessarily been convicted of anything.

You see, the various watch lists that the government maintains aren't lists of people the government is absolutely certain are terrorists.  They are lists of people the government thinks might be associated with terrorism.  For example, if you go to the same mosque as a known Al-Qaeda member, you might get your name added to the list.  Or maybe it's just that your name is fairly close to someone else's name who does. 

Or maybe it was that one-way ticket you bought last year (to bring your child home from college).  Or the number of money orders you purchased (so your child could buy his books, pizza, and so on).  Or the $10,000 down payment you made on your house. 

There are lots of ways to get on a government list.  In fact, according to some sources, the no-fly list isn't even an actual list; it's a set of criteria, and they put you on it if you meet those criteria when you buy the ticket.

The no-fly list is so far removed from reality that Senator Ted Kennedy was on it.  Well, for the day or so it took a man of his influence to get his name removed -- but until he did, flying was not allowed.

The Government Accountability Office report Tuesday said people associated with terrorist groups had taken advantage of loopholes in U.S. gun laws that do not automatically bar a person belonging to such a group from buying a gun. It documented 44 attempts and 35 successful sales in five months of 2004, and another 12 sales later in the year.

Due process is a Constitutional Right, not a loophole.  Before you can deny someone a fundamental civil right you must try them in a court of law, and obtain a conviction.  If the government had evidence that the people on the watch list were actually terrorists, they would be arrested and thrown in jail.  

Since you can't do that on suspicion of terrorist associations (and remember, folks, freedom of association is another fundamental civil right), you can't stop them from buying a gun, either.   Any other course offends not only the 2nd Amendment, but also the First, Fourth, and Fifth.

And unless you think Senator Kennedy is a terrorist, you should be happy about that. 

UPDATE: They also want a meeting with the FBI Director on the issue.  Why they bothered to introduce the bill before meeting with law enforcement is indicative of how much weight they intend to give whatever concerns he might raise, assuming he bothers to raise any.  The fact is, we're not dealing with suspected terrorists in the watch list concept.  We're dealing with something much broader than that.  The watch list here has no due process, no appeals process, no removal process, and no way to clear your name.  As such, it cannot be used as the basis to deny Constitutionally-protected rights.